01a62707
09-28-2006
James M. Smith, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
James M. Smith v. Department of Veterans Affairs
01A62707
.
James M. Smith,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A62707
Agency No. 200J-0556-2004104140
Hearing No. 210-2005-00203X
DECISION
Complainant, a Transportation Driver, WG-6, initiated contact with an
EEO Counselor on September 2, 2004. Complainant filed a formal EEO
complaint in which he claimed that the agency discriminated against him
in reprisal for his previous EEO activity under Title VII when:
1. On or about August 2, 2004, complainant was not selected for the
position of Industrial Equipment Operator. <1>
The agency accepted claim (1) and investigated the claim, and thereafter
referred the matter to an Administrative Judge (AJ), pursuant to
complainant's request for a hearing. Without holding a hearing, the AJ
issued a decision finding no reprisal discrimination.
The AJ stated that the applicants for the position were advised in the
vacancy announcement that they would be rated and ranked based on an
assessment of their knowledge, skills and abilities as evidenced from
the information contained in their application, personnel folder and a
supplemental qualifications statement. The AJ noted that complainant,
the only internal applicant, was referred to the selection panel.
The AJ stated that during the interview, complainant was asked thirteen
performance-based questions to determine if he possessed the knowledge
and skills necessary to perform the duties of the assignment. The AJ
noted that the three interviewers gave complainant a cumulative score of
132 out of a possible 330, which was far below the minimum requirement
under the criteria to qualify him for the position. The AJ noted that
one interview panel member stated that during the interview, complainant
answered questions so vaguely it was unclear whether he had any knowledge
of the subject area. This member of the interview panel further stated
that complainant was unable to give examples of specific experiences or
how he handled them, and that complainant failed to answer some questions
or his responses were superficial. Another panel member stated that
complainant struggled with his responses and that he answered very slowly
with regard to technical questions. This panel member further stated
that complainant did not indicate any in-depth knowledge. According
to the AJ, the selection approval official subsequently requested an
outside recruitment list. Six candidates were interviewed from the
Transfer Eligible and Veterans Eligible referral lists. The selectees
for the position scored 292 and 269 respectively out of a possible 330.
The AJ found that the agency articulated legitimate, nondiscriminatory
reasons for not selecting complainant for the position of Industrial
Equipment Operator. The AJ further found that complainant did not offer
any evidence that the agency's assessment of his interview performance
was false and that he did not provide any evidence that he was more
qualified than the selectees.
By final order dated February 14, 2006, the agency stated that it was
fully implementing the AJ's decision. Thereafter, complainant filed
the instant appeal.
The Commission's regulations allow an AJ to issue a decision without a
hearing when he or she finds that there is no genuine issue of material
fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is "genuine" if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital
Equip. Corp., 846 F.2D 103, 105 (1st Cir. 1988). A fact is "material"
if it has the potential to affect the outcome of the case. If a case
can only be resolved by weighing conflicting evidence, summary judgment
is not appropriate. In the context of an administrative proceeding,
an AJ may properly consider summary judgment only upon a determination
that the record has been adequately developed for summary disposition.
With respect to complainant not being selected for the Industrial
Equipment Operator position, we shall assume arguendo that complainant set
forth a prima facie case of reprisal discrimination. The agency stated
that complainant fared poorly during his interview and that the selectees
had much higher scores for their interviews. The agency also stated
that complainant did not demonstrate that he had applicable experience
for the position. We find that the agency articulated legitimate,
nondiscriminatory reasons for not selecting complainant.
The record indicates that complainant's interview performance was
significantly worse than that of the two individuals who were selected
for the position. Complainant has not refuted the agency's position
concerning his interview performance. Complainant also has not shown
that his experience was applicable to the position at issue. We find
that complainant has not established that the agency's stated reasons
were pretext intended to mask discriminatory motivation based on reprisal.
Accordingly, we AFFIRM the agency's final order finding no reprisal
discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 28, 2006
__________________
Date
1The Commission notes that the agency
previously dismissed complainant's claim regarding a non-referral for
an interview on February 17, 2004, concerning an Industrial Equipment
Repairer position. The agency found that complainant failed to timely
contact an EEO Counselor and then subsequently withdrew this claim.
Complainant is not challenging the dismissal of this claim in this appeal
and we shall not address this claim further in this decision.